What, Exactly, is a Federally Regulated Water or Wetland?

May 5, 2011
by JONATHAN E. RINDE
MGKF Special Alert

The U.S. Environmental Protection Agency ("EPA") and the U.S. Army Corps of Engineers (the "Corps") released new guidance on April 27, 2011, which addresses the definition of "waters" and "wetlands" pursuant to regulatory programs under the federal Clean Water Act. The agencies said the new guidance would extend protection and federal permitting jurisdiction to more waters and wetlands than is provided under current federal policy.

EPA and the Corps have been wrestling with determinations regarding the extent of their Clean Water Act jurisdiction ever since the U.S. Supreme Court's decision in Rapanos v. United States. In Rapanos, the Supreme Court failed to issue a majority opinion on the scope of federal jurisdiction under the Clean Water Act, causing confusion among regulators, the regulated community, and the courts. Justice Kennedy's opinion in Rapanos stated that a "significant nexus" is needed for the federal government to establish jurisdiction over waters and wetlands far removed from traditional navigable waters. In the newly-announced guidance, no further discussion was included on the "significant nexus" test, other than to direct field staff to continue to refer these project-specific situations to headquarters for formal determinations.

Importantly the guidance will apply to all Clean Water Act programs, including but not limited to Section 401 water quality certifications, Section 402 National Pollution Discharge Elimination System permits, and Section 404 permits for discharges of dredge or fill material.

Waters that re defined in the guidance to be included within the jurisdiction of the Clean Water Act are:

  • Traditional navigable waters
  • Interstate waters
  • Wetlands adjacent to either traditional navigable waters or interstate waters
  • Non-navigable tributaries to traditional navigable waters that contain water at least seasonally, and wetlands that are adjacent to them.

Other waters and wetlands not identified by these categories would have to meet the "significant nexus" test to fall within the Clean Water Act's jurisdiction.

Environmental groups have publicly praised the new guidance as re-establishing the federal government's broad role in protecting waters and wetlands, while business groups have expressed disappointment that the guidance increases the scope of federal jurisdiction and corresponding regulatory burdens. One hundred and seventy U.S. Representatives signed a letter to EPA Administrator Lisa Jackson expressing their view that the guidance, by attempting to expand federal jurisdiction, is de fact rulemaking without following the procedures dictated by the Administrative Procedures Act.

The guidance, published in the Federal Register on May 2, 2011, will be open for a 60 day comment period. EPA stated that following the comment period, it will undertake rulemaking on this issue, although it set forth no timeframe to do so. If you would like further information on EPA's and the Corp's new guidance, or would like assistance on preparing comments on the guidance, please contact Jonathan E. Rinde at 484-430-2325 or jrinde@mgkflaw.com.